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HomeMy WebLinkAbout06 295 Rental of Airport Hanger, MacDonald,Little . . . . THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2006 - 295 BEING A BY-LAW TO AUTHORIZE THE SIGNING OF A LEASE AGREEMENT FOR THE RENTAL OF AN AIRPORT HANGAR (MacDonald, Little) WHEREAS Section 11 (2) of the Municipal Act, 2001, 5.0. 2001, c. 25, as amended, provides that lower-tier municipalities may pass by-laws within the sphere of jurisdiction of transportation systems, other than highways, including airports; AND WHEREAS pursuant to the said Municipal Act, Sections 8 and 9 (1) provide municipalities with the powers of a natural person to enable them to govern their affairs as they consider appropriate under this or any other Act and to enhance their ability to respond to municipal issues; AND WHEREAS it is deemed expedient to enter into a lease agreement with Roderick A. (Sandy) MacDonald and David Little for the rental of a hangar at the Kincardine municipal airport located on Concession A, pt Lots 26 to 29, RP 3R- 438, Parts 2 to 8, RP 3R-3803, Parts 1 to 5, RP 3613, Part 1 ; NOW THEREFORE the Council for The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That the Corporation of the Municipality of Kincardine enter into a lease agreement with Roderick A. (Sandy) MacDonald and Dave Little for the rental of a hangar on lands located at the Kincardine municipal airport and known as Concession A, pt Lots 26 to 29, RP 3R-438, Parts 2 to 8, RP 3R- 38803, Parts 1 to 5, RP 3613, Part 1. 2. That the term of this lease be for a twenty (20) year period, to be computed from the first day of November 2006 and ending on the 31 st day of October 2026. 3. That the Mayor and CAD be hereby authorized to sign, on behalf of the Council for The Corporation of the Municipality of Kincardine the lease agreement with Roderick A. (Sandy) MacDonald) and David Little attached hereto as Schedule "A". 4. This by-law shall come into full force and effect upon its final passage. . . ./2 . . . . Page 2 Airport Hangar Lease Agreement (MacDonald, Little) By-law By-law No. 2006 - 295 5. This by-law may be cited as the "Airport Hangar Lease Agreement (MacDonald, Little) By-law". READ a FIRST, SECOND and a THIRD time and FINALLY PASSED this 1st day of November, 2006. 1u.-~ ~ Mayor ~~~ Clerk This LEASE made this Fi~sl - This is Schedule" ..fL. ". to ~.bLa~ NO~.;J.~d 1he L da) of . LJEfvtft1c:R...200.f.o '" ~~ ~~ day of 4JJ~IJ"Ji/e~2006Mayor Clerk In Pursuance of the SHORT FORMS OF LEASES ACT, R.S.O. 1980, Chapter 473. BETWEEN THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (hereinafter called the "Landlord") and RODERICK A. (SANDY) MacDONALD AND DAVE LITTLE (hereinafter called the "Tenants") WHEREAS The Landlord is a Municipal Corporation in the Province of Ontario; AND WHEREAS The Landlord is the Owner in fee simple of certain lands situate in the Municipality of Kincardine, County of Bruce, Province of Ontario, which lands are more fully described in the attached Schedule "A" and are called the "Airport Lands" in this Lease. IN CONSIDERATION of the rents reserved and covenants and agreements contained in this lease on the part of the Tenants, the Landlord leases to the Tenants for the term and upon the conditions in this lease that portion of the Airport Lands, together with certain rights of way, as described in the attached Schedule "B" and hereinafter referred to as the "Leased Land". 1. TERM The Tenants are to hold the Leased Land for the term of twenty (20) years, to be computed from the first day of November 2006 and from thenceforth ensuing and to be fully completed and ended on the 31 st day of October, 2026. 2. RENEWAL Provided always it is agreed between parties: a) If the Tenants are not in arrears of the payment of rent and has not breached the covenants herein at the time of the expiration of the term granted by this Lease then, the Landlord shall, upon the written request of the Tenants received by the Landlord at least six (6) months prior to the termination of the Lease, grant to the Tenant a renewal Lease of the Leased Lands for a further term of five (5) years upon the same terms and conditions as are contained in this Lease save and except rent; provided that the rent for the renewal Lease shall be agreed upon by the parties and further provided that, in the event that the Landlord and Tenants cannot agree upon the amount of rent to be paid by the Tenants during the term of the renewal Lease within thirty (30) days of the commencement of the new term under the renewal Lease then the issue of rent only is to be determined at the instance of either party under the Arbitrations Act in force from time to time in the Province of Ontario through a single arbitrator whose award is subject to appeal to a Judge in Court and from a Judge in Court to the Ontario Court of Appeal. Page 2 Airport Lease - McDonald/little 3. RENEGOTIATE This contract is to be renegotiated to the mutual satisfaction of all parties if the existing leased site conflicts with future expansion and development plans. 4. RENT i) The Tenants paying therefor, without abatement or set-off, rent to the Landlord as follows: (a) a base rent of $.29 per square foot per year for an area occupied by Hangar. (b) the area to be leased will include two (2) feet on all the exterior sides of Hangar. (c) Yearly on each anniversary date of each year thereafter the base rent shall be increased in proportion to the increase in the Ontario Consumer Price Index as published by Statistics Canada for the immediately preceding calendar year and that rent shall become the new base rent. (d) all rent shall be paid in advance, without prior demand, to the Landlord. ii) The Tenants hereby acknowledge that the foregoing rent payable is solely for the leased premises which is comprised of the land and the Tenants further acknowledge and agree that the rent provided for by this Lease shall be payable whether or not a building is erected on the leased premises and the rent is payable, due and owing by the Tenants even in the event that the building is partially damaged or totally destroyed. There shall be no abatement of rent. 5. TAXES The Tenants covenant to pay, as and when they fall due, all municipal and other real property taxes, including charges for local improvements, assessments and other rates and levies assessed, levied, or imposed on the Leased Land and any improvements thereon and to provide to the Landlord receipts for the payment thereof. Such taxes shall include a proportionate share of any taxes levied against the Airport Lands as a whole. The Landlord, at its sole option, may pay the taxes referred to herein on behalf of the Tenants and collect such money from the Tenants as additional rent. 6. UTILITIES All utilities are at the option of the Tenants. The Tenants covenant to pay, as and when they fall due, all charges for installation and use of electricity, gas, water, and telephone service which may be supplied to the Leased Land. All services are to be underground. Further, the Municipality of Kincardine agrees to extend the main hydro power source to a central point, from which the tenant may connect. , . Page 3 Airport lease - McDonald/little 7. TENANT TO ERECT IMPROVEMENTS (a) From and after the execution of this lease by the parties hereto, the Tenant shall proceed with due diligence to prepare plans for the improvement of the leased lands in such detail as the landlord may reasonably require, (b) The improvements described in the plans shall be in accordance with the Site Plan Agreement attached hereto as Schedule "C", In addition, the planned improvements shall meet the following criteria: (i) hangars must comply with all building code requirements of the Municipality of Kincardine; (ii) uniformity of design including roof style and window size and location; (iii) compliance with height restrictions as outlined in the Site Plan Agreement; (iv) exterior colours for the entire leased area, to conform with existing buildings; (v) metal siding; (vi) grading to be in accordance with the Site Plan Agreement. Site to be prepared for construction by Tenants, including excavating, filling and grading. (vii) all hangers must have main entrance aircraft doors. (viii) all hangers must be heated with propane only. (c) The Tenants shall submit the plans referred to in subparagraph (b) to the landlord for approval which shall not be unreasonably withheld. (d) The Tenants shall not commence any improvement to the Leased land without the prior approval of the landlord as set out in subparagraph (c). (e) All construction of improvements, including excavation, grading, etc. shall be done at the sole expense of the Tenant and shall not operate to set off or abate the rent reserved herein but such expenses shall be in addition thereto. (f) The Tenants shall discharge at their own expense, any lien filed against the leased land or the Airport Lands in respect of work carried out upon the leased land, and it shall pay any legal or other costs, fees or disbursements howsoever incurred by the landlord in connection with such lien. The landlord may, at its sole option, discharge such liens by paying into court or otherwise and such amounts paid are recoverable by the landlord from the Tenants as additional rent. (g) Within six (6) months of the commencement of this lease, to commence the construction of a hangar on the demised premises and to complete the construction within twelve (12) months of the commencement of this lease. Upon completion, all improvements constructed upon the leased land shall be vested in the Tenants. If the construction of the said hangar is not completed within the said Page 4 Airport Lease - McDonald/little twelve (12) month period, this lease shall terminate at the end of such period and, notwithstanding any other term to the contrary, the Tenants shall have thirty (30) days in which to remove any partially constructed hangar on the demised premises. If not removed within such period, any partially constructed hangar or the remains thereof shall become the property of the Landlord. (h) In the event that the Tenants refuse or neglect to renew the Lease after the expiration of the term of the Lease in accordance with the provisions of Paragraph 2 herein then the Tenant within thirty (30) days after the expiration of the term of this Lease, shall remove the building and improvements erected upon the leased land (including any plumbing, heating, ventilating plant or other building service) solely at the cost of the Tenants. In the event that the Tenants irrevocably covenants and agrees that the Landlord shall have the right to purchase the building for the sum of one dollar ($1.00) and the Tenants shall grant a Bill of Sale and execute any additional documentation required to transfer title to the building and the Tenants' improvements, to the Landlord. 8. MAINTENANCE AND REPAIR (a) The Tenants agree to operate, maintain, and keep the premises in such good order and condition both inside and out as they would be kept by a reasonably careful and prudent owner and promptly to make all needed repairs and replacements as shall be reasonably necessary including, while not limiting the generality of the foregoing, the roof, foundations and appurtenances including fixtures, facilities and equipment belonging to and forming part of the premises; provided, however, that the foregoing obligations of the Tenants shall include repairs required by reasonable wear and tear. (b) If the Tenants fail to maintain the building, the Landlord may, on written notice to the Tenant, perform such maintenance and repairs as the Landlord in its sole discretion deems appropriate and necessary and the cost of thereof shall be payable by the Tenant as additional rent. (c) In the event of loss, damage or partial loss or damage to the building, the Tenants shall replace or repair the building with due diligence and dispatch and in the event that the Tenants fail to repair or replace with due diligence and dispatch the Landlord has the right to rebuild, repair or demolish and remove, at the Landlord's sole discretion, the building and the costs incurred by the Landlord in relation thereto shall be payable by the Tenants as additional rent; provided that, notwithstanding any other proviSion to the contrary, in the event of substantial damage or total loss which the Tenants neglect or refuse to repair or rebuild with due dispatch and diligence, then the Landlord shall have the unilateral right to terminate the Lease. (d) The Tenants shall, at his own expense, repair, replace, rebuild or restore the buildings to their original condition. 9. INSURANCE During the term of this Lease and any renewals of this Lease, the Tenants shall ensure or cause to be insured at their own cost and expense and shall take out and keep in force: . . Page 5 Airport Lease - McDonald/little (a) insurance against claims for personal injury, death, public liability and property damage insurance in the amount of at least two million dollars ($2,OOO,OOO.OO) for injury or damage to anyone person, with recognized insurance companies acceptable to the landlord. The Tenant shall ensure that the Municipality of Kincardine shall be named as an additional insured on the contracts of insurance. (b) insurance against fire and other perils providing for replacement cost and rebuilding. The Tenants shall provide the landlord with a certified copy of the policy or policies in effect on an annual basis. If, at any time, the Tenants fail to pay the premiums on the insurance policy, as and when they fall due, the landlord may pay such premiums on behalf of the Tenants and such payments are recoverable from the Tenants as additional rent. The Tenants covenant that they will provide the insurance coverage which includes a loss of income provision with the loss payable to the landlord. 1 o. VACANT PREMISES If the leased land becomes vacant and remains so for a period of three (3) months or is used by any person other than the Tenants for a purpose other than that for which they are leased without the written consent of the Landlord, the then current month's rent and the three (3) month's rent following will immediately become due and payable and the term will at the option of the landlord and the Landlord at any time thereafter may re- enter and repossess the leased land as in its former state. 11. QUIET ENJOYMENT The landlord covenants with the Tenants for quiet enjoyment. 12. INDEMNIFICATION The Tenants covenant with the landlord to indemnify the landlord against all actions, suits, claims, damages, costs and liability arising out of: (a) breach, violation or non-performance of any Tenants' covenant, condition and agreement of this lease; (b) damage to property occasioned by the Tenants' use of the leased land; (c) injury to or the death of any person resulting from the Tenants' use of the leased land. 13. USE OF LEASED LAND OUTSIDE OF BUILDING The uncovered portion of the leased land shall not be used except for aircraft taxiways. landscaping shall be maintained at all times in a neat and tidy condition and if not so maintained, may be maintained by the landlord and the expense for such maintenance is recoverable as Additional Rent. 14. SERVICE ROAD AND TAXIWAY Construction of any required service roadway/taxiway between the Tenants' lot line and the airport-paved finger taxiway is at the Tenants' expense. . . Page 6 Airport lease - McDonald/little 15. GRASS CUTTING AND SNOW PLOUGHING The landlord at its discretion agrees to provide snow ploughing for the finger taxiway to the lot line. The landlord agrees to regularly cut the grass around the leased land. 16. RIGHT TO ASSIGN The Tenants may assign this lease provided that the Landlord has provided written consent, such consent to be granted or withheld at the sole, unfettered discretion of the landlord. 17. RIGHT TO INSPECT The landlord may enter upon and inspect the leased land at any time during the currency of this lease. 18. GASOLINE AND OIL STORAGE No gasoline, or any other flammable material, with the exception of engine oil may be stored on the premises. The Tenants covenant not to keep any oil on the premises other than for the Tenants' own use. 19. INTEREST ON AMOUNT OWING Where any amount is due and owing by either party to this lease to the other, compound interest shall be paid on such amount commencing fifteen 15) days after the date on which the amount was payable at the rate of 1.25 percent per month. 20. PERMITTED USE OF LEASED LAND The Tenants acknowledge that, in accordance with the present Site Plan Agreement with the Municipality of Kincardine, the pennitted use of the leased land is Aircraft Storage. · Commercial operations such as charter operators, flight schools, aircraft rental or leasing, aircraft repair, avionics repair, avionics sales, aircraft parts sales, aircraft refinishing, aircraft manufacturing, aircraft parts manufacturing, gasoline and oil sales, car rentals, food sales are prohibited on the leased Land. 21. RULES AND REGULATIONS The Tenants agree to observe all rules, regulations and laws laid down by Transport Canada and the rules and regulations laid down by the landlord or its agents concerning the proper conduct of the Airport. Upon any breach of such rule or regulation by the Tenants, the landlord may at its sole discretion immediately terminate this lease, re-enter and take possession of the leased land. 22. BINDING EFFECT This lease is, where the context permits, binding on, extends to and ensures to the benefit of the parties hereto and their successors and assigns. 23. GENDER The word "Owner", or the words, "he" or "his" where used in this Agreement, in addition to their accepted meanings, shall mean and include an individual, an associate, a partnership or an incorporated '!' ~: ~ I Page 7 Airport Lease - McDonald/little company and also includes heirs, successors and assigns. Wherever the singular is used herein, it shall be construed as including the plural, and wherever the masculine is used herein it shall be construed as including the feminine, and vice versa in all cases. 24. TERMINATION CLAUSE In the event that either party requests termination of this agreement a 120 day notice period, with written notice to both parties must be conducted. The hanger may be sold to another party I subject to the completion of an Airport Lease with the Municipality of Kincardine. WITNESS the corporate seals of the parties, attested by their duly authorized officers. SIGNED, SEALED AND DELIVERED in the presence of Witness Witness THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE ~k - -' Mayor - Glenn R. Sutton ) ) ) ) ) ) ) )- ~ )~ \.~L- ~ e~.~~^^ ) C.A.D. - John deRosenrol ) ) ) ) ) ) ) ) ) ) THE TENANTS &J)Q~ Dave Litle